Getting a Divorce: Who Gets to Keep the House?
Of all the questions that arise during a divorce, the one about the family home often carries the most emotional weight. It is more than just a financial asset; it’s the heart of your family’s life. Who gets to keep the house?
It is where you celebrated holidays, marked your children’s heights on a doorframe, and perhaps watched the sun set behind Camelback Mountain from your own backyard. The thought of leaving that behind can feel overwhelming.
Navigating this part of a divorce in Arizona involves understanding specific state laws. A divorce lawyer can help you make sense of your rights and options. The process is not about winners and losers but about a fair and legal division of what you built together.
Gaining clarity on how this works can empower you to make informed decisions for your future, helping you move forward with confidence and peace of mind.
What Does “Community Property” Mean in Arizona?
Arizona is what is known as a community property state. This is a legal concept that is fundamental to understanding how all your assets, including your house, will be handled in a divorce.
In simple terms, community property is almost everything a couple acquires or earns during their marriage. It belongs to both spouses equally, regardless of whose name is on the title or who earned the paycheck that paid for it.
Think of marriage as a partnership. Everything the partnership accumulates belongs to the partnership. On the other hand, separate property is anything that belonged to one spouse before marriage. It also includes certain assets acquired during the marriage, such as:
- An inheritance received by only one spouse.
- A gift given specifically to one spouse.
- The proceeds from a personal injury settlement intended for that individual.
The law presumes that property acquired during the marriage is community property. If one spouse claims something is their separate property, they have the burden of proving it with clear evidence.
How Do Courts Decide if the House is Community or Separate Property?
The first step is to determine whether the family home is community or separate property. The answer depends entirely on when and how it was purchased and paid for.
The most straightforward situation is when a couple buys a home after they are married using money earned during the marriage. In this case, the house is clearly community property.
Upon divorce, the equity in the home (its current market value minus any mortgage debt) is considered a community asset to be divided. Things get more complex in other common scenarios.
For instance, what if one person owned the house before the marriage? Initially, that house is their separate property. However, the situation changes if marital funds were used to make mortgage payments, pay for renovations, or cover property taxes.
This is called “commingling,” where separate and community funds get mixed. When this happens, the marital community gains an interest in the home. This is known as a community lien.
To figure this out, courts may look at:
- How much the mortgage was paid down using marital funds.
- The amount of marital money spent on significant improvements that increased the home’s value.
- The overall increase in the property’s value during the marriage.
Calculating a community lien can be complicated and often requires a detailed financial analysis to trace the source of the funds used over many years. This is a critical area where having clear financial records is incredibly helpful.
What Are the Options for Dividing the House in a Divorce?
Once you determine the community’s financial interest in the house, you and your spouse must decide what to do with it. Arizona courts encourage couples to reach an agreement on their own. If they cannot, a judge will make the decision.
Generally, there are three primary paths forward for the family home.
- Sell the House and Split the Proceeds: This is often the cleanest and most common solution. The house is put on the market, and once it sells, the mortgage and any other liens are paid off.
The remaining profit, or equity, is then divided between the spouses according to their community and separate property interests. This allows both individuals to receive their share of the asset in cash and make a fresh start.
- One Spouse Buys Out the Other: If one person wants to keep the house, they can buy out the other spouse’s share. To do this, you must first determine the home’s fair market value, usually through a professional appraisal.
The spouse keeping the home must then secure enough financing to pay the other spouse for their share of the equity. This is typically done by refinancing the mortgage into their name alone.
- Continue to Co-Own the House: While rare, some couples agree to continue owning the house together for a specific period after the divorce. This is most common when young children are involved, and the parents want to minimize disruption.
However, this option requires a very detailed and legally sound agreement that outlines who is responsible for payments, repairs, and how the property will eventually be sold or divided.
Each of these options has significant financial and legal implications. It is important to carefully consider which path aligns best with your long-term financial stability and personal goals.
Does Having Children Change Who Gets the House?
The presence of minor children is a major factor that courts in Phoenix and across Arizona take very seriously. The primary goal of the court in any custody-related matter is to act in the best interests of the children, and stability is a huge part of that.
Because of this, a judge might order a “deferred sale” of the family home. This means the parent who has primary physical custody of the children may be allowed to continue living in the house for a set period.
The sale of the home is postponed, often until a specific event occurs.
A court might consider a deferred sale if:
- Moving would be particularly disruptive to the children’s emotional well-being, education, or social life.
- The custodial parent can afford the ongoing costs of the home (mortgage, taxes, insurance, and upkeep).
- The arrangement is economically feasible for both parents.
A deferred sale does not erase the other parent’s financial interest in the home. It simply delays the payout. The court order will specify how and when the other spouse will receive their share of the equity in the future.
How a Dedicated Attorney Helps Navigate This Process
Figuring out what happens to your home involves property laws, financial calculations, and deep personal emotions. You do not have to solve it by yourself. A family law attorney can provide the structure and support to navigate these decisions.
An attorney is your advocate, focused on protecting your rights and helping you work toward a fair outcome. This support can include:
- Clarifying Your Rights: Helping you understand the difference between community and separate property and how it applies to your specific situation.
- Gathering and Analyzing Information: Assisting you in collecting the necessary financial documents, such as deeds, mortgage statements, and bank records, to build a clear picture of the property’s history.
- Exploring Your Options: Laying out the pros and cons of selling the house, buying out your spouse, or other potential arrangements so you can make a right choice for you.
- Negotiating on Your Behalf: Advocating for your interests during settlement discussions with your spouse and their attorney, aiming to reach a fair agreement without going to court.
- Representing You in Court: If an agreement cannot be reached, a dedicated attorney will prepare and present your case to a judge, ensuring your side of the story is heard clearly and persuasively.
Facing a divorce can feel like navigating an unfamiliar landscape without a map. A strong advocate by your side provides the guidance you need to find the best path forward for you and your family.
FAQ
What if my name is not on the deed or the mortgage?
In Arizona, if the house was acquired during the marriage with marital funds, it is generally considered community property even if only one spouse’s name is on the legal documents. The law looks at when and how the asset was acquired, not just the name on the title.
Who is responsible for paying the mortgage during the divorce process?
Until a final court order or agreement says otherwise, both spouses may be considered responsible for the debt. Often, a judge will issue temporary orders that specify who will live in the home and who will make the payments while the divorce is pending.
Can I force my spouse to sell the house?
You cannot unilaterally force a sale. However, you can ask the court to order the sale of the house as part of the final divorce decree. If the house is determined to be community property and neither spouse can or wants to buy out the other, a court-ordered sale is a very common outcome.
What happens to the furniture and other contents of the house?
The contents of the home, like furniture, electronics, and artwork, are also considered personal property that must be divided. Like the house, items acquired during the marriage are generally community property and should be divided equitably between the spouses.
What if we disagree on the value of our house?
If you and your spouse cannot agree on the home’s value, you will likely need to hire a neutral, certified real estate appraiser. The appraiser will provide a professional opinion of the fair market value, which can then be used for buyout calculations or to set a listing price.
Does it matter who was “at fault” for the divorce?
Arizona is a “no-fault” divorce state. This means that a spouse’s misconduct, such as infidelity, is generally not a factor in how property is divided. The court’s focus is on an equitable, or fair, division of the community assets and debts, not on punishing one spouse for their behavior.
Charting Your Path Forward
Deciding the future of your family home is one of the most significant steps in a divorce. It is a financial decision wrapped in years of memories and emotion.
While the process may seem daunting, remember that every step you take is a step toward a new beginning. You have the strength to navigate this challenge and build a stable, hopeful future for yourself.
At the Law Office of Cosmas Onyia, we understand the personal and legal complexities you are facing. Grounded in a deep appreciation for the resilience of the human spirit, our approach is to provide strong, compassionate advocacy for people navigating difficult family transitions.
We help you understand your options and protect your rights with dedication and integrity. You do not have to figure this out alone. For a confidential discussion about your situation, please call family law attorneys in Phoenix, AZ at (602) 265-5200 to see how we can help.
